State Jurisdiction and the Permissiveness of International Law: Is the Lotus Still Blooming?
| Author | Marco Vöhringer |
| Position | LLM (LSE) '21. BA in International Relations (Technische Universität Dresden) '20 |
| Pages | 29-60 |
2021
LSE LAW REVIEW
29
State Jurisdiction and the Permissiveness of
International Law: Is the Lotus Still Blooming?
Marco Vöhringer*
ABSTRACT
The Lotus rule has traditionally stipulated that, in international law, any conduct not specifically
prohibited is allowed. However, there now is considerable disagreement as to whether this principle
is still valid. This article argues that one should distinguish between the Lotus principle’s
conceptual origins and its core content. It will be shown that, given the evolution of international
law, the positivist assumptions on which Lotus was initially based are no longer tenable. On the
other hand, the basic Lotus presumption, which requires state action to be deemed lawful unless
it violates an international prohibition, is still v iable and can be reconciled with the structure of
modern international law. This ‘enlightened reading of the Lotus rule’ will subsequently serve as
a lens for examining the international rules on state jurisdiction. The conclusion will be that this
area of international law demonstrates that the presumption of lawfulness still applies, but that
the sources from which relevant international prohibitions can be derived have diversified.
* LLM (LSE) ’21. BA in International Relations (Technische Universität Dresden) ’ ‘20.
The author would like to thank Devika Hovell and Henri Weindel for their insightful
comments on the subject.
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State Jurisdiction and the Permissiveness of International Law
Vol. VII
INTRODUCTION
What is the function of law? Is it to establish and protect the freedom of its
subjects? Or is the freedom of the legal subject instead assumed as a pre-existing
value, and the role of the law is to limit this freedom where necessary? In domestic
legal orders which recognise individual liberty, the answer is clear: Individuals are
free to ac t as they wish, and this freedom is only limited in certain instances by
legal rules. Accordingly, natural persons do not require permission from the state
to act in a certain way—as long as there is no legal norm to the contrary, they are
free to do what they please.1
In international law, there has traditionally been an a nalogous
understanding, commonly referred to as the Lotus principle. Like individuals,
states were presumed to have the freedom to act as they saw fit, with the function
of international norms being to restrict this freedom in defined and limited
circumstances.2 Nowadays, however, there is surprisingly little agreement as to
whether this rule still applies to contemporary international law. On the one hand,
the continuing validity of the Lotus approach is portrayed as self-evident in taught
courses which characterise it as the ‘ground rule’ of international law3 and by
commentators who readily cite and apply this presumption of state freedom.4 At
the other end of the spectrum, the Lotus model has been described as an
anachronistic outlook on international law that should be 5—or, alter natively,
1 Jan Klabbers, International Law (3rd edn, Cambridge University Press 2021) 25.
2 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal
Argument (Cambridge University Press 2006) 255.
3 John F Murphy and Jeffery Atik, ‘Int ernational Legal Education’ (2003) 37 The
International Lawyer. 623, 626; Hugh Handeyside, ‘The Lotus Principle in ICJ
Jurisprudence’ (2007) 29 Melbourne Journal of International Law 71, 72.
4 Michael P Scharf, ‘Application of Treaty-Based Universal Jurisdiction on Nationals of
Non-Party States’ (2001) 35 New England Law Review 363, 366-368; Roger P Alford,
‘Reflections on US-Zeroing’ (2006) 45 Columbia Journal of Transnational Law 196, 203.
5 Rosalyn Higgins, ‘International Trade Law and the Avoidance, Containment and
Resolution of Disputes’ (1991) 230 Recueil des Cours 1, 114; van den Wyngaert, Dissenting
Opinion in Arrest Warrant of 11 Apr il 2000 (Democratic Republic of the Congo v Belgium),
Judgment, I.C.J. Reports 2002 (hereinafter Arrest Warrant), 137, para. 51.
2021
LSE LAW REVIEW
31
already has been6—abandoned. This dissonance among scholars is remarkable
given that the status of the Lotus principle is of fundamental importance for
international adjudication: Whenever the legality of state conduct is at issue, the
question poses itself whether the state concerned needs to justify its action by
invoking a permissive rule of international law, or if the conduct is instead
considered lawful unless it is shown to violate an applicable prohibition, as
suggested by Lotus.
The present article will try to explain and resolve this scholarly ambiguity
about the current standing of the Lotus rule in international law. In essence, it will
be argued that a distinction needs to be drawn between the principle’s conceptual
origins and the presumption of lawfulness that forms the core content of this rule.
While the positivist theoretical foundations of Lotus have indeed become
outdated, the core presumptive logic it expresses is still valid and can be reconciled
with the characteristics of modern international law.
In developing this line of argument, the initial articulation of the Lotus rule
will first be placed in its intellectual context (I). Then, it will be argued that the
structure of international law has changed since then, and that this has invalidated
many of the original assumptions behind Lotus (II(A)). Subsequ ently, it will be
shown that the quintessential Lotus presumption is nevertheless still reflected in
the jurisprudence of the International Court of Justice (‘ICJ’) and that this
presumption can be adapted to the structures of contemporary international law
(II(B)). Following this, the international rules on the exercise of prescriptive state
jurisdiction will serve as a test case for this m odernised, ‘enlightened’ versio n of
the Lotus principle (III). Finally, the essay will return to the introductory question
and reflect on the conclusions from the discussions that emerged (IV).
6 Armin von Bogdandy and Markus Rau, ‘The Lotus’ Max Planck Encyclopedia of P ublic
International Law, (Oxford University Press 2008) <www.mpepil.com> accessed 7
November 2021, para . 18; Alvarez, Individual Opinion in Fisheries Case (United Kingdom v
Norway), Judgment, I.C.J. Reports 1951 (hereinafter Fisheries Case), 145, at 152.
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